The Supreme Court on Monday ordered the 4th Circuit Court of Appeals to examine the constitutionality of the health care reform law’s employer requirements and mandatory coverage of contraceptives without a co-pay.

The move could open the door for President Barack Obama’s health law to be back in front of the Supreme Court late next year. But legal experts say there’s no guarantee that the justices would actually take the case — or that they’d strike down those pieces of the law if they did.

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The Supreme Court responded to a request from Liberty University, one of the groups that sued over the health care law’s individual mandate in 2010. When the court ruled in June that the mandate was constitutional, it dismissed Liberty’s entire lawsuit.

Over the summer, the school asked the Supreme Court to reopen its arguments against the employer mandate and the contraceptive coverage mandate, which it said were not addressed by the court’s ruling this summer. The court on Monday agreed to the request and told the 4th Circuit to hear arguments on the two pieces.

The 4th Circuit, which traditionally moves quickly, could hear oral arguments in the case next spring.

“This is a huge decision by the court. It breathes new life into our challenge once again,” Mat Staver, founder and chairman of Liberty Counsel, which represents Liberty University, told POLITICO.

Staver said that even if the 4th Circuit were to throw the case out, Liberty’s ultimate goal is to take the case to the Supreme Court.

The 4th Circuit is just “a destination along the way back to the U.S. Supreme Court,” he said. “Nobody thinks it’s going to be the last decision on this case.”

Liberty University argues that the law’s employer coverage provisions — which will require businesses with more than 50 full-time employees to provide health insurance for them or face fines — are unconstitutional because Congress overstepped its power by setting those rules.

It also says the individual and employer mandates violate the Constitution’s right to a free exercise of religion. The employer mandate is unconstitutional because of the contraception coverage requirement, Liberty argues, claiming that the individual mandate would require individuals to pay for coverage of abortions.

The Justice Department declined to comment on the Supreme Court order Monday, but it told the court last month that it wouldn’t object to the 4th Circuit taking up the case.

In that brief, Solicitor General Donald Verrilli wrote that Liberty University’s arguments “lack merit” but that the Obama administration wouldn’t oppose a hearing because the issues weren’t fully aired the first time around.

Some legal experts are skeptical that Liberty would get anywhere with its arguments against the employer mandate if the case does get to the Supreme Court.

“I think it’s going to be very, very difficult for the challengers to the employer mandate to navigate around a precedent that’s already been established” in the Supreme Court’s ruling upholding the individual mandate, said Catherine Stetson, a partner at the D.C. law firm Hogan Lovells.

The arguments against the contraception coverage mandate could be a different story, but only if this is the case that actually gets to the Supreme Court.

Readers' Comments (223)

They have no case regarding contraceptives. There is clear (blood obvious) secular purpose to the mandatory contraceptive coverage. The law does not have to bend over backwards for the religious, simply have a clear secular purpose.

Nothing good is going to come from the federal government for at lest 4 years, if ever again. Corrption, immorality and avirtuous character is the new norm. Get used to living in a failed democracy where the stupid and evil have more sway than others.

Nothing good is going to come from the federal government for at lest 4 years, if ever again. Corrption, immorality and avirtuous character is the new norm. Get used to living in a failed democracy where the stupid and evil have more sway than others.

Agreed that there is no case regarding contraceptives. As for the employer mandate, I don't know how it could be overturned without upending the whole Obamacare applecart. Makes me wonder if the 4 conservatives have "persuaded" Roberts in some way or fashion. And here I assumed the whole issue was overwith and done.....alas.

Agreed. Universal Single Payer now!!!! It's really only a matter of time, seeing as it is the only long term viable solution to this nation's health care woes. I guess it's also just a matter of how many folks must die before we ALL draw the same conclusion.

Only someone with an anti-American agenda could possibly claim that obamacare is even remotely within the confines of the Constitution. The only thing that John Roberts validated with his tortured ruling is that he is a spineless ass. This law will not, can not stand.

A thousand bucks to the first liberal who can point to the words in the Affordable Care Act that require coverage of contraception without copays. If you can find it you'll understand everything you need to know about Obamacare. Hint: google the law, go to the pdf, do a word search. Waiting.....

The Supreme Court did not exactly declare the "mandate" to be "constitutional" in June.

Rather, a majority of the Court held the "penalty" to be a "tax" and therefore the challenge failed because plaintiffs cannot challenge a "tax" under Federal law unless the tax is both due and paid by the plaintiff! If the majority considered the imposition to be a "penalty" it could have been immediately challenged.

The constitutionality of the health care scheme is still subject to a number of legal challenges which will work through the courts over the next few years.

How is it a 1st Amendment violation? The Lemon Test says that the legislation needs to have a secular purpose. This does. To make the exception for religion would be the violation. This law treats all hospitals alike.

Single Payer works so well that Britain's National Health Service is going to replace doctor's visits with Skype to save money. As if forcing patients to get their drinking water from potted plants wasn't enough...